MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 14 January 2003
         DOCKET NUMBER: AR2002074229


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Ms. Jennifer L. Prater		Member
Ms. Mae M. Bullock		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
                  records
         Exhibit B - Military Personnel Records (including
                  advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his earlier appeal to upgrade his discharge from a general, under honorable conditions discharge (GD) to an honorable discharge (HD).

APPLICANT STATES: In effect, that he bases his reconsideration request on an error in the Board’s original report. He claims that his request is supported by his overall record of service, which includes the awards he received. Further, he states that his medical records from the Department of Veterans Affairs (DVA) will show he suffers from anxiety and mental depression, exposure to Agent Orange, and Hepatitis C. He further contends that the drug charges against
him were false and made by an officer who stated his disapproval of
African-Americans in the Army. He asks that he be provided the documentation from his discharge and the denial of an upgrade in 1975. He now requests that the errors made in the Board’s original decisional document be corrected and that the record show he has provided proof of false allegations based on the lack of documentation supporting his discharge.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2001064370) on 16 April 2002.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted. Given the applicant has requested reconsideration within the one year period, the Board accepts his request as argument that requires Board consideration.

On 26 July 1972, after completing 2 years, 4 months, and 2 days of creditable active military service and having accrued 51 days of time lost due to AWOL, the applicant received an undesirable discharge under the provisions of chapter 10,
Army Regulation 635-200.

On 17 May 1977, the Army Discharge Review Board (ADRB), in the interest of compassion, upgraded the applicant’s undesirable discharge to a GD under the provisions of the Special Discharge Review Program based on his combat service in the Republic of Vietnam. However, the ADRB also concluded that his service did not warrant an upgrade of his discharge to fully honorable, and it found the authority and reason for his discharge were both proper and equitable. On 28 August 1978, this ADRB upgrade action was affirmed under Public Law 95-126.
During its original deliberation on this case, the Board noted that court-martial charges had been preferred against the applicant for disobeying a lawful order from a noncommissioned officer (NCO); possession of drug paraphernalia; having live ammunition in his wall locker; and breaking restriction. It also noted that the applicant, by his own admission, had voluntarily requested discharge in order to avoid a trial by court-martial.

The Board’s review of the applicant’s service record included consideration of his combat service, including his accomplishments and the awards he received. Upon the completion of its evaluation, the Board concluded that authority and reason for the applicant’s discharge were both proper and equitable; and it determined that his overall record of service did not warrant an upgrade beyond that already granted by the ADRB. However, the Board did find an omission error in the applicant’s separation document, and it directed an administrative correction that would add the following awards earned by the applicant to his
DD Form 214: National Defense Service Medal; Parachutist Badge; Combat Infantryman Badge; Vietnam Service Medal; and the Republic of Vietnam Campaign Medal.

There was no evidence contained in the applicant’s record at the time of the Board’s original deliberations to show that any of the drug charges against him were false or were based on the prejudice of any member of the chain of command. This Board likewise finds no evidence of record or independent evidence that would support either of these conditions existed at the time of the applicant’s discharge processing.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 (Burden of proof) states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

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DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes and carefully considered the applicant’s latest claims that his discharge should be upgraded based on his overall record of service; his current medical condition that includes anxiety and mental depression, exposure to Agent Orange, and Hepatitis C; because the charges against him were false and made by an officer who stated his disapproval of African-Americans in the Army; and his claim that the lack of documentation on his discharge processing proves that his discharge was unjust. However, it finds no evidence to support any of these latest contentions.

2. The Board’s original decisional document made clear that the applicant’s discharge was accomplished in accordance with the applicable law and regulations in effect at the time. Lacking any new independent evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and that the applicant’s rights were fully protected throughout these proceedings.

3. The Board carefully considered the applicant’s contention that his record of service, including his combat service and awards and decorations warrant an upgrade to his discharge. However, it notes the that the applicant’s discharge has been previously upgraded by the ADRB based on his combat service and accomplishments, and it finds that his misconduct clearly diminished the overall quality of service below that meriting a fully honorable discharge.

4. The Board also notes the applicant’s claim that the charges against him were based on the false allegations of an officer who had stated his disapproval of African-Americans in the Army. However, while it takes any allegation of prejudice very seriously and would never let stand an action that was based on racial bias, the Board finds no evidence of record or independent evidence provided by the applicant that supports his assertion that bigotry was a factor in his case. Thus, it concludes there is no evidentiary basis on which to support the applicant’s claim of racial prejudice.

5. The applicant is advised that the lack of documentation on his separation processing does not support a determination that his discharge processing was in error or unjust. By regulation, the Board begins its consideration of every case with a presumption that what the Army did was correct, and the burden of overcoming this presumption of regularity rests with the applicant.

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6. In view of the facts of this case, the Board concludes that the applicant has failed to satisfy the regulatory burden of proof in this case. Therefore, it finds that the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.


BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__MKP__ __JLP _ __MMB __ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002074229
SUFFIX
RECON
DATE BOARDED	2003/01/14
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1972/07/26
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.